One B.C. fisherman’s fight for cross-border native rights

Joel Barde and Carlos Tello, Special to the Sun05.13.2013

Fisherman Steven Stark on the Fraser River. The Tsawwassen First Nation member says it’s his right to fish on the U.S. side of Boundary Bay because of historic ties between the TFN and the Lummi band in Washington state.

The new council is very supportive of Stephen Stark, according to Tony Jacobs (above).

But he’s committed to fighting the charges. He hopes his case will result in a decision that will allow TFN and neighbouring First Nations to fish over what he contends is an illusionary line.

Stark’s trial in Whatcom County Superior Court is scheduled to start on May 20.Stark claims that he was fishing in traditional Tsawwassen territory.

“Washington state,” says Stark, “hasn’t come across a case like this, not that I’ve Googled — and I’ve done a lot of Googling.”

Since his arrest, Stark has immersed himself in a complicated web of First Nations history, treaties and court decisions.

Stark’s defence boils down to one central contention: that he was arrested in traditional TFN territory, territory where he is legally entitled to fish.

Dr. Bruce Miller, an anthropology professor at the University of B.C., agrees. He has studied the Coast Salish people of Washington state and British Columbia for the last 30 years.

Miller authored a report — commissioned and paid for by Stark — that is critical to the fisherman’s defence. It draws from well-known 19th-century anthropologist Franz Boas, whose maps show the nation’s territory as including all of Point Roberts and two-thirds of Boundary Bay.

Miller also asserts that the Tsawwassen First Nation and Lummi Nation, a U.S. tribe located south of TFN, are related.

“It is my opinion that mid-19th century ancestors of the Tsawwassen First Nation regularly intermarried members of the Lummi Nation. People from Lummi lived in Tsawwassen territory and vice versa… These patterns have continued from treaty times into the present.”

Stark argues that the closeness of that relationship means that TFN should fall under a 19th-century treaty that grants various Puget Sound tribes, including Lummi Nation, the right to fish in their traditional territory.Washington state’s prosecutor for the case, James Hulbert, questioned that line of thinking during a court hearing in March. The hearing was called to discuss a request made by Stark to dismiss the case.

Lummi and Tsawwassen, Hulbert says, are not the same nation.

TFN is not a federally recognized Indian tribe in the U.S., and it’s not mentioned in any of the pertinent American court decisions or treaties, he says.

The judge decided not to dismiss the case, saying he felt constricted by the law on the matter.

Following the decision, Hulbert expressed sympathy towards Stark’s desire to fight the charges.

But the state, he says, is taking the case seriously. There are conservation concerns, and he thinks that allowing Stark to fish in the area is unfair. Puget Sound tribes battled hard to gain that right, he says.

Hulbert is doubtful that members of Lummi will back Stark’s claim that TFN and Lummi are one nation.

The lawyer also says that — even if Stark is able to establish his right to fish in those waters — he still carried out illegal acts: Stark was arrested fishing at night, with lines with multiple traps attached to them.Fishing runs deep in Stark’s family. His father, like his grandfather, was a fisherman. He grew up on the deck of his father’s boat.

The 34-year-old has a salmon tattooed on his left shoulder, a crab on his right.

He lights up when recalling the banner salmon years of his youth, when he would drop a net into the sea and pull up hundreds of fish.

“Those times,” he says, “are practically nonexistent anymore.”

Now, Stark says, fierce competition from commercial fishermen forces Tsawwassen members to fish closer to the border to provide for their families.

When Stark talks about TFN’s reaction to his arrest — how the council took away his “food, social and ceremonial” fishing licence for over a year — his speech slows, taking on a more serious tone.

“I said, you don’t own me. You don’t own me as a Tsawwassen person walking freely on the ground grabbing my natural resources,” he says of his initial discussions with the council. “You can have the card. But you can never take the native out of me.”

That decision was undertaken by TFN’s previous council, led by former chief Kim Baird, who in 2003 negotiated a landmark treaty agreement that provides TFN with the authority to make laws respecting their lands, resources and culture.

TFN declined to talk about the former council’s decision to revoke Stark’s fishing licence.

But Tony Jacobs, a member of the TFN legislative assembly, says that the new council — which reinstated his licence — is fully supportive of Stark.

The border, he says, has only become an issue for TFN fishermen since 9/11. Like Stark, Jacobs’ grandfather and father both fished around Point Roberts and throughout Boundary Bay.

Jacobs is appalled at the severity of the charges Stark faces.

“It doesn’t matter if it’s small or big,” Jacobs says. “When you’re dealing with the American authorities, anything to do with the border is just ridiculous.”

He hopes Stark wins the trial and TFN fishermen are granted more flexibility in terms of crossing the border.Mandy Jones, Stark’s partner of six years, says his decision to continue to fish in the U.S. after being arrested was a selfish act.

“I had told him not to risk it again,” she says.

Jones says the couple had goals, like putting a down payment on a home. Stark’s arrest has put that on the back burner. She had to use a credit card to bail him out.

The possibility of Stark going to prison is a thought she avoids. Losing her partner, she says, would be devastating for her and their three children.

She worries about how the family would survive. Right now she works part-time as a cleaning lady and subsidizes her income by crafting ornate headbands and hair clips. Paying the bills solely on her own income, she says, would be impossible.

The ordeal has already had a major financial impact on the couple. Between lawyer fees, the cost to commission Dr. Miller’s report and the cost to release his boat, Stark estimates they have spent just under $90,000.

Sometimes there’s not enough money to buy groceries, Jones says.

She does, however, say that she supports her partner.

The two met through a program for recovering alcoholics, and she views the case as another positive step forward in Stark’s life.

“When I first met him,” she says, “he barely had two nickels to rub together.”

The research, Jones says, has brought him closer to his culture, and she’s proud that he’s involving their children in it.

A blessed man

Stark believes that the ordeal will make him a stronger man.

The arrest has broken Stark financially. It required him to dive into a complicated world of colonial and legal history. It caused his nation to revoke his fishing license. And it’s led to tension in his marriage.

But Stark believes he is emerging as a stronger person. “I feel kind of blessed actually,” he says, following a long pause.

The charges, he claims, have forced him to dive into the history of his people. That research has given him purpose and a deeper understanding of his culture.

“It’s taken us 150 years to learn their words, to learn their papers. And maybe it’s my time to shine, to say: ‘Hey, under your law we’re supposed to be protected.’ ”

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One B.C. fisherman’s fight for cross-border native rights

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